Child Abduction - Part 1

Part 1 of this series

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The law is governed by the Child Abduction and Custody Act 1985 and the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  There are also a great number of judicial authorities which assist with how the primary legislation has been interpreted by the Courts.  

For a case to amount to one of child abduction, there must be a removal from the child’s country of habitual residence in breach of a person’s (usually a parent’s) rights of custody.  Rights of custody has been widely incorporated to include informal rights, for example, where prior to the removal a family member had been the primary carer of the child if they had otherwise thought the protection of the Court in their own country, the court would have made an Order preserving the status quo at that time.  Article 5 of the Convention defines rights of custody as including rights relating to the care of the person of the child andin particular, the right to determine the child’s place of residence. Those who therefore hold parental responsibility in the country of the child’s habitual residence will therefore be regarded as being able to exercise rights ofcustody.  However, this will be determined in accordance with the law applicable to the country of the child’s habitual residence and, sometimes, a legal expert may be instructed to assist the court in determining this issue. Where there is already an Order in place providing for shared care (as opposed to contact or access, the UK courts will almost certainly accept that the absent parent has rights of custody. However, if it can be established that the absent parent had not been exercising parental responsibility or has consented or indeed acquiesced to the removal, this gives rise to a defence that the child should not be summarily returned to his or her own country. Further, any application for return needs to be made within 12 months from the date of removal, unless it can be established that the child is not yet settled in his new environment. In order to establish settlement, the abducting parent must provide evidence that the child is established in the local community such as school and friendship groups and that there is an emotional connection denoting security and stability.  Further, in cases where the date of the alleged wrongful abduction is unclear (such as retention after an agreed holiday), any intention to wrongly detain must be communicated to the absent parent for the purpose of calculating when the 12-month period starts.  The courts have also interpreted the phrase, “settled in its new environment” to be fact specific and concerned not just with the present but with what the child’s future will entail in his new environment.  

The Defences of Consent and Acquiescence

The removing parent must prove consent was provided by the absent parent. The court will focus on ‘the reality of the family's situation and consider all the circumstances in making its assessment. The consent must be clear and unequivocal, but it does not have to be given in writing or in any particular terms and may be manifested by words and/or inferred from conduct. The absent parent may also acquiesce in the removal or retention of a child if they in fact consented to the child’s continued presence in the jurisdiction to which the child had been abducted. Whether they did acquiesce depends on their actual state of mind and intention which is a  question of fact to be determined by the court, and even if they had not in fact acquiesced, they maybe held to have done so if their words or actions clearly and unequivocally showed (and had led the other parent to believe) that they were not asserting or going to assert their right to the summary return of the child.

However, even if the court concludes that the absent parent dis consent or acquiesce in the removal of the child, the court retains an inherent power to still order the summary return of the child if it is in the child’s best interests.

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Grave risk to the child

Article 13(b) of the Convention sets out the defence that the Court can refuse return if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The burden of proof rests with the party opposing the child’s return and the Court will consider whether protective measures, such as undertakings, can be put in place to sufficiently reduce the risk to the child.  Appropriate undertakings may relate to conditions in which the child will live, when they return and how the foreign courts can order protective measures to be put in place.  In deciding what weight to attach to undertakings, the court must consider whether the undertakings are likely to be effective both in terms of compliance by the absent parent but also, the consequences if he or she breaches an undertaking.  Matters taken into account by the Courts have included situations where there has been a history of domestic abuse, where a parent may face a period of imprisonment on their return and where immigration visa issues would impact on practical arrangements. It has also included cases where the risk of harm may arise from the neglect of a child.

Child’s objections

The court may also refuse to make a Return Order if it finds that the child objects to being returned and has obtained an age and degree of maturity where it is appropriate to take account of his or her views.  This defence is entirely separate to the Article 13(b) defence above.  There is no particular age of the child to be considered as having attained sufficient maturity, but there will need to be an analysis of the strength and  validity of those views to include an examination of what is the child’s own prospective of what lies in his best interests, to what extent are the reasons for objection rooted in reality, to what extent have those views been shaped or coloured by undue influence or pressure by the abducting parent and to what extent will the objections be modified on the  return of the child. Judicial authority has confirmed that the gateway or threshold for taking account of a child’s objections is “fairly low”.  The child’s views will usually be obtained by a Cafcass Family Court Adviser.  

Practical considerations

The Hague Convention (as incorporated by the Child Abduction and Custody Act 1995) focuses on the wrongful removal or retention of a child by one parent in a country other than that of the child’s habitual residence. The purpose of the legislation is to secure the swift return of children wrongfully removed from their own country so that they can return to the place which is properly their “home” and so that any welfare dispute can be decided by the Courts of that country.  This has the following consequences:

(a) Applications are determined summarily.  Oral evidence is rarely heard and the Courts carry out a broad evaluation of the evidence rather than undertake detailed fact-finding.

(b) Whilst a parent’s statement can and must set out any defence relied on such as the circumstances where the child would be exposed to grave, physical or psychological harm or otherwise placed in an intolerable situation, the court will attach significant weight to whether any protective measures can be put in place by the country of origin to reduce the risk of such harm.

(c) The need for expert evidence should be identified at the first hearing.  This may include a legal expert on the relevant law in the country of origin or psychological or psychiatric assessment where the defence of grave risk of harm is raised.  Invariably, Cafcass will be directed to prepare a report to assist the Court on the application of the relevant welfare issues, including any objections raised by the child.

(d) Legal aid is available as of right to the parent bringing the application and is also available to the parent defending the application but is subject to both a means and merits test.

(e) Standard directions and orders made at the outset of the case will include the retention of passports by the Court (Passport Order), for the Tipstaff of the High Court to locate the child/or the abducting parent to inform the Tipstaff of the whereabouts of the child (Location Order), the filing of an Answer and statements, consideration of any interim contact arrangements pending a final determination by the Court of the application and whether any expert evidence is necessary.

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